Rethinking the Structures of the Hegemonic Discourse of the WTO Judge and Investment Arbitrator: A Gramscian Analysis — Edoardo Stoppioni

This post uses the work of Gramsci to analyze the discourse of WTO judges and investment arbitrators with respect to international law sources conventionally deemed exogenous to the “economic” proceedings over which they preside.

Recent critical reflection on international law’s “fragmentation” has popularized the idea that certain jurisdictions are capable of exercising hegemonic power in the international legal sphere. According to Martti Koskenniemi, these “regimes are both operationally closed (unable to view the external world apart from where it has been translated into their idiom) and expansive (that is, seeking to make that idiom the global Esperanto)”. [1]

Why focus on sources traditionally dubbed “exogenous” or “non-economic” in the context of the debate about international law’s increasing fragmentation? Simply put, understanding interactions between different normative orders (or orders that are characterized as different) is essential to understanding the way in which courts and tribunals contribute to the production and reproduction of the international legal order. Among other approaches, critical systems theory has been used to defend the claim that international law is replete with systemic biases of various kinds that are rendered invisible through hegemonic discourses. [2]

Why use the Gramscian theory of hegemony here? First, Gramsci developed his concept of hegemony by reference to theories of discourse and ideology. [3] As a result, his work is particularly useful for analyzing legal discourse. Second, for Gramsci, the concept of hegemony entails a certain plasticity, or polymorphism, that makes it especially useful for analyzing complex and shifting relations of power. [4]

Elements of a Judicial Discourse of Hegemonic Expansion

The concept of hegemony, as explored in Gramsci’s Prison Notebooks, is linked to the idea of expansion. In this respect, Gramsci was influenced by his professor of linguistics, Matteo Giulio Bartoli, most notably by his idea of the “prestige” of a language or linguistic construct. A linguistic phenomenon tends towards hegemonic power as it gains authority over other phenomena on account of its comparatively greater degree of “prestige”. Gramsci speaks of the “irradiation” of “prestige” and of the concomitant creation of “conformism”: expansion normalizes the power of the hegemon. [5]

Case law offers countless examples of this process. For instance, at its inception, the Appellate Body offered an “environmental obiter dictum” to the effect that even if trade considerations had prevailed in a given case, this did not mean that environmental issues had not been taken into account. In this respect, the Appellate Body felt the need to clarify what its decision “does not mean”:

It does not mean, or imply, that the ability of any WTO Member to take measures to control air pollution or, more generally, to protect the environment, is at issue …. WTO Members have a large measure of autonomy to determine their own policies on the environment (including its relationship with trade), their environmental objectives and the environmental legislation they enact and implement. So far as concerns the WTO, that autonomy is circumscribed only by the need to respect the requirements of the General Agreement and the other covered agreements. [6]

Here the WTO judge explains that the adjudicative body’s decision has taken into account “extra-systemic” considerations while subordinating them to the overriding power of strictly “economic” concerns. Knowing that the use of an obiter dictum is quite rare in WTO case law, this serves the purpose of expansion, demonstrating how trade law extends into domains traditionally regarded as lying at a significant remove from it. [7]

The power to receive amicus curiae briefs in investment disputes provides a similar example. Tribunals have begun to recognize that their cases involve important “public interest” aspects extending “far beyond those raised by the usual transnational arbitration between commercial parties”. [8] The growing movement to accept amici allows “exogenous” factors to permeate the field of investment arbitration, but conflicts with the rather weak consideration that is given to such factors in the actual legal reasoning of tribunals. The language of expansion serves the purpose of self-legitimation, shoring up the authority of the tribunals involved, to a far greater degree than that of systemic integration.

Even when investment tribunals display openness toward “exogenous” international law sources, their discourse entails an expansion of the “economic” idiom without a proper commitment to taking these sources seriously. In the Phoenix case, the tribunal enlarged the concept of “protected investment” and introduced an implicit condition of legality and good faith to the Salini test, the theoretical justification of which lies in a “teleological reading” of “protected investment” based upon general principles of international law. [9] Nevertheless, the tribunal explained that “nobody would suggest that ICSID protection should be granted to investments made in violation of the most fundamental rules of protection of human rights, like investments made in pursuance of torture or genocide or in support of slavery or trafficking of human organs”. If basic human concerns are taken into account at this early stage of legal reasoning, the hyperbole that finds expression in the award (even jus cogens violations are countenanced) shows that there is often a felt need to select extreme examples so as not to diminish the overriding importance of investment concerns.

For Gramsci any hegemonic relation is necessarily a pedagogical relationship. [10] Displaying a pedagogical attitude towards those who espouse “extra-systemic” values, the economic adjudicator builds their own legitimacy and normalizes their own vision of economic relations.

Elements of a Judicial Discourse of Hegemonic Isolation

In mainstream legal analysis, it is not uncommon to encounter suggestions to the effect that the WTO and investment arbitration are impermeable to “exogenous” sources–that they function in more or less splendid isolation from the rest of the international legal order.

A first move in this vein is to lay stress upon the limited mandate and jurisdiction of the economic adjudicator. In WTO case law, this posture is associated with a theory developed in GATT dispute-settlement: the so-called “four corners” doctrine. This name was derived from the idea that a GATT panel “would be limited in its activities and findings within the four corners of GATT”. [11] This idea is reiterated in at least one famous report of the Appellate Body. Indeed, in the Mexico–Soft Drinks case, the Appellate Body stated that

[a]ccepting Mexico’s interpretation would imply that the WTO dispute settlement system could be used to determine rights and obligations outside the covered agreements …. WTO panels and the Appellate Body would thus become adjudicators of non-WTO disputes. … [T]his is not the function of panels and the Appellate Body as intended by the DSU. [12]

In investment arbitration, the jurisdictional clause limits the authority of the tribunal. Depending upon the wording in question, it can restrain the tribunal’s authority to adjudicate disputes arising from the violation of a particular substantial provision (normally an expropriation clause) or more generally “concerning” an international investment, even if the arbitral practice has not demonstrated a tendency to read such provisions broadly. A well-known example of this is offered by the Biloune case, in which investment arbitrators declared that they lacked jurisdiction to analyze human rights violations “as an independent cause of action”. The tribunal explained that notwithstanding the importance of human rights in contemporary international law, it “does not follow that this Tribunal is competent to pass upon every type of departure from the minimum standard to which foreign nationals are entitled, or that this Tribunal is authorized to deal with allegations of violations of fundamental human rights”. [13]

Another important feature of the prevailing discourse of economic adjudicators is the idea that their judicial function does not require engagement with “exogenous” sources. Here the economic adjudicator typically decides not to verify the validity and relevance of such sources, or simply declines to take them into account for the purposes of interpretation. When asked by the European Communities to apply the precautionary principle, for example, the Appellate Body preferred to abstain, stating that

the precautionary principle is regarded by some as having crystallized into a general principle of customary international environmental law. Whether it has been widely accepted by Members as a principle of general or customary international law appears less than clear. We consider, however, that it is unnecessary, and probably imprudent for the Appellate Body in this appeal to take a position on this important, but abstract, question. [14]

Moreover, in the well-known EC–Biotech case, a WTO panel put a stop to any attempt to use Article 31(3)(c) of the Vienna Convention on the Law of Treaties, stating that external rules should have been binding upon all WTO members. A similar result has been reached in investment disputes with the notion of limited jurisdiction. [15]

This is yet another form of hegemonic discourse, in this case linked to the free-trade ideology. This ideology is capable of being explained through Gramsci’s account of “economism”. For Gramsci “economism” is “the theoretical separation of the economic dimension from a social and political ensemble: more specifically, the reduction of this ensemble to its economic causes”. [16] In the Prison Notebooks, Gramsci associates such separation directly and explicitly with the ideology of free trade. [17] Free-trade ideology’s attempt to separate the “economic” from the “social” and “political” informs much of the posture adopted by WTO judges and investment arbitrators.

Rethinking the Hegemonic Judicial Discourse: Between “Prestige” and “Economism”

The discourse of the WTO judge and of the investment arbitrator with respect to legal sources traditionally dubbed “exogenous” or “non-economic” oscillates between two positions. The first such position is distinguished by the achievement of hegemony through expansion. The judge uses a language of dissemination, striving to make their own idiom the dominant form of legal expression and subordinate “non-economic” to “economic” considerations. The second position is marked by the achievement of hegemony through isolation. Here the judge prefers to use a discourse of containment in order to ensure that their power is not contested, cordoning the “economic” off from the “non-economic”. Both positions are the work of ideology, and both are capable of being illuminated through Gramscian analysis.

[1] Martti Koskenniemi, “Hegemonic Regimes”, in Margaret A. Young (ed), Regime Interaction in International Law: Facing Fragmentation (Cambridge: Cambridge University Press, 2012) 305, at 318.

[2] See especially Andreas Fischer-Lescano, “La théorie des systèmes comme théorie critique”, 3 (2010) Droit et société 645.

[3] Franco Lo Piparo, “Studio del linguaggio e teoria gramsciana”, 25 (1987) Critica marxista 167.

[4] Christine Buci-Glucksmann, Gramsci e lo Stato. Per una teoria materialistica della filosofia (Roma: Editori Riuniti, 1976), 75.

[5] Prison Notebooks, notebook 13, §17.

[6] WTO Appellate Body Report, United States–Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 29 April 1996, at 30.

[7] This dictum has become a classic one, since the Appellate Body used it in the last paragraph of its first decision, the Gasoline case, and it is particularly evident in the Shrimps case (WTO Appellate Body Report, United States–Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998, §185). This kind of legal reasoning, joining balancing with a retrospective justification by means of obiter dictum, was clearly applied to tobacco policies in the Clove case (WTO Appellate Body Report, United States–Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, 4 April 2012, §96 and 235).

[8] Methanex Corporation c. États-Unis d’Amérique, affaire CNUDCI, décision du tribunal sur la demande de tierce intervention du 15 janvier 2001, §49.

[9] Phoenix Action Ltd. v. Czech Republic, ICSID case n. ARB/06/5, award, 15 April 2009, §114: “To summarize all the requirements for an investment to benefit from the international protection of ICSID, the Tribunal considers that the following six elements have to be taken into account: 1–a contribution in money or other assets; 2–a certain duration; 3–an element of risk; 4–an operation made in order to develop an economic activity in the host State; 5–assets invested in accordance with the laws of the host State; 6–assets invested bona fide.”

[10] Prison Notebooks, notebook 10, at 1331.

[11] GATT Panel Report, Canada–Administration of the Foreign Investment Review Act (BISD 30S/140, 1984), §1.4.

[12] WTO Appellate Body Report, Mexico–Taxes on Soft Drinks, WT/DS308/AB/R, 6 March 2006, §56, 78.

[13] Biloune and Marine Drive Complex Ltd v. Ghana Investments Center and the Gouvernement of Ghana, UNCITRAL award, 30 June 1990, 203.

[14] WTO Appellate Body, European Communities–EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, 16 January 1998, §123.

[15] Grand River Enterprises Six Nations Ltd. et al. v. The United States of America, UNCITRAL award, 12 January 2011, §71: “The Tribunal understands the obligation to “take into account” other rules of international law to require it to respect the Vienna Convention’s rules governing treaty interpretation. However, the Tribunal does not understand this obligation to provide a license to import into NAFTA legal elements from other treaties, or to allow alteration of an interpretation established through the normal interpretive processes of the Vienna Convention. This is a Tribunal of limited jurisdiction; it has no mandate to decide claims based on treaties other than NAFTA. … The Tribunal is particularly mindful in this regard of the Free Trade Commission’s directive that a violation of an obligation under another treaty does not give rise to a breach of Article 1105.”

[16] David Forgacs (ed.), The Gramsci ReaderSelected Writings 1916–1935 (New York: NYU Press, 2000), 422. 

[17] Prison Notebooks, notebook 13, §18: “The approach of the free trade movement is based on a theoretical error whose practical origin is not hard to identify: namely the distinction between political society and civil society, which is made into and presented as an organic one, whereas in fact it is merely methodological. Thus it is asserted that economic activity belongs to civil society, and that the state must not intervene to regulate it. But since in actual reality civil society and state are one and the same, it must be made clear that laissez-faire too is a form of state ‘regulation’, introduced and maintained by legislative and coercive means.” This translation is taken from Forgacs, Gramsci Reader, 210.

Edoardo Stoppioni is Research Fellow at the Max Planck Institute for International, European, and Regulatory Procedural Law in Luxembourg.